For most judges, the basic unit of the Constitution is The Clause; for most law professors, the basic unit is The Theory, the one that lurks behind the Clauses and the cases, and puts them in their best light.
For me, the basic unit is The Generation. Constitutional meaning is not primarily created by judges out of texts but emerges in the course of the struggle by ordinary Americans to hammer out fundamental political understandings. This struggle is not fueled by the intellectual curiosity of a juristic elite, but by crucial historical events which provoke popular efforts to modify, sometimes radically, preexisting starting points: the war for independence or the war between the states or the struggle between capital and labor or the struggle against Nazism and Communism or the struggle for racial equality or . . . .
Date of Authorship for this Version
Ackerman, Bruce, "A Generation of Betrayal?" (1995). Faculty Scholarship Series. Paper 130.